The Zimbabwean constitution and press freedom
The relevant provision in the Zimbabwean Constitution for the purpose of this discussion is section 20 (1) that reads;
No
person shall be hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference, and freedom from
interference with his correspondence.
Zimbabwe's
Constitution guarantees freedom of expression but falls short of giving
an explicit guarantee for freedom of press and access to information.
It has no constitutional guarantee that overtly provides for and
protects media freedom and access to information.
Freedom
of the press and access to information is left to be read into the
broader interpretation of section 20(1) and the absence of such has
serious cross-cutting effects on the manner in which the right to
freedom of expression is technically construed or interpreted by the
judiciary.
In a situation where one approaches the
court citing or challenging a clear violation of their right to press
freedom, the threat presented is that the courts are vested with the
discretion to either stretch the meaning of section 20, to include the
right or limit it so that precedence is given to that which is
expressly stated, to the exclusion of that which may be logically
implied.
While the idea of limiting the scope of
section 20(1) might be perceived as being ill-conceived because of its
overly rigid approach, it does not make it any less hazardous or lawful
since at the end of the day it is a question of the liberal or
conservative inclinations of the judge. This highlights the need to
have a constitution that properly or adequately defines the parameters
to which the right to freedom of expression extends and within which
bounds it may not be infringed; further amplifying the reasoning that
since such rights give effect and meaning to the right to freedom of
expression, they should be prescribed by the law through explicit
constitutional provisions.
Of importance is the
fact that courts will not always rule in favour of upholding media
freedom as a necessary extension of the right to freedom of expression.
The case of the Associated Newspapers of Zimbabwe (ANZ), publishers of
The Daily News and Daily News on Sunday is ample testimony to this
fact. The case largely revolved around the constitutionality of the
compulsory registration with the Media and Information Commission (now
the Zimbabwe Media Commission). The decision arrived at in this matter
by Chief Justice Godfrey Chidyausiku, was without doubt one of the most
fatal blows to freedom of expression in Zimbabwe under the guise of the
Access to Information and Protection of Privacy Act (AIPPA). He
dismissed the case on the basis of the dirty hands' doctrine, implying
that the ANZ application could only be entertained upon full compliance
of the law; ironically it was the very law that was the subject of
contest. The courts failed to appreciate the need to interpret the
concept of freedom of expression in a liberal and purposive manner so
as to give effect to the right.
The right to freedom
of expression as enshrined in the constitution is seemingly abridged by
the provisions in section 20(2). This section stipulates the enjoyment
of the right to freedom of expression may be restricted under any law
that makes provision for issues relating to issues of public safety,
public health, or issues of national interests, provided such
restrictions are reasonably necessary in a democratic society.
These
limitations on freedom of expression permitted under the Zimbabwean
Constitution are very widely drawn, considerably more widely than those
permitted in many other countries’ constitutions. Moreover, the
International Covenant on Civil and Political Rights, to which Zimbabwe
is a state party, states that;
19(3) the exercise of the
rights [to freedom of expression and information] … may … be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or public order or of public health or morals.
The
Constitution of Zimbabwe therefore permits much wider limitations on
freedom of expression than are permitted under international law.
The case of Mozambique
In
contrast to the Constitution of Zimbabwe, Mozambique's constitution
expressly provides for freedom of the press as a fundamental freedom
distinct from freedom of expression generally.
Article 74 of the constitution states that;
1 All citizens shall have the right to freedom of expression and to freedom of the press as well as the right to information.
2.
Freedom of expression, which includes the right to disseminate one’s
opinion by all legal means, and the right to information, shall not be
limited by censorship.
3. Freedom of the press shall include in
particular the freedom of journalistic expression and creativity,
access to sources of information, protection of professional
independence and confidentiality, and the right to publish newspapers
and other publications.
4. The exercise of the rights and freedoms
referred to in this article shall be regulated by law based on the
necessary respect for the Constitution, for the dignity of the human
person, and for the mandates of foreign policy and national defence.
Mozambique's
constitution guarantees press freedom contrary to the Zimbabwean
context in Mozambique there are rarely any vicious attacks on press
freedom. But this is not to say that the country has absolute political
tolerance of press freedom as is testified by the murder of journalist,
Carlos Cardoso in 2000, who was known for his open criticism of
political leaders and aggressive editorial style.
Even
though there is a constitutional guarantee of press freedom, the 1991
Press Law contains statutes that permit press freedom to be abridged in
order to respect the Constitution, human dignity, and imperatives of
foreign policy and national defence. The Press law also holds that in
case of defamation against the president, truth is not a defence. The
vagueness of these provisions allow officials to prosecute journalists.
This indicates that it is inadequate to merely cite a right without a
complementary framework that allows the attainment and exercise of such
a right.
In the absence of these necessary conditions,
there comes into play a host of crucial exceptions to, and restrictive
definitions of the scope of operation of a right and the need to have
particular rights may be totally undermined. It is totally illogical to
say that the constitution guarantees the right to freedom of expression
and press on one hand while another piece of clandestine legislation
(such as the press law in this instance) takes away the same right.
Other
constitutions like those of Namibia and South Africa, expressly state
that freedom of expression includes freedom of the press and other
media, Zimbabwe should rightfully follow the same regional path.
The
State should ensure the protection of its people and govern in a manner
that is in sync with their wishes by having full regard of their
fundamental rights. By voting people into power, people in essence give
up their liberty in return for protection.
However, the
underlying idea is that the citizenry should always enjoy their basic
fundamental liberties; otherwise it would be illogical to assume that
man would give up his liberty in return for enslavement.
2. Summary of media alerts: March 2009
|
Victim/ |
Violation |
Date |
Status of
|
|
|
Zimbabwe Community Radio |
A new radio station, Zimbabwe Community Radio, is broadcasting |
1 March |
|
|
|
Jestina Mukoko, director of the |
Mukoko who had been languishing
Her release followed an urgent
Bail was set at |
2 March
|
Magistrate Guvamombe ordered
US$20 000 as surety. She is also
Her next appearance in court was |
|
|
Jestina |
Mukoko appeared before Harare
|
4 March |
Her lawyer Alec Muchadehama was |
|
|
Freelance photojournalist |
Manyere appeared before Harare
Manyere is being charged under |
6 March |
Magistrate Wochiunga deferred
The application is still
|
|
|
Anderson Shadreck
|
Manyere's application for refusal |
9 March |
The matter was remanded to 23
His lawyer Alec Muchadehama said |
|
|
ZimInd Publishers
|
ZimInd |
14 March
|
|
|
|
Editor of The Chronicle Brezhnev Malaba and reporter
|
Malaba and Tshuma are arrested
|
17 March |
Tshuma told MISA-Zimbabwe on 26 |
|
|
Postal and Telecommunications
|
POTRAZ reduces all telephone
|
18 March |
Thelargest cellular network |
|
|
Anderson Shadreck Manyere
|
Harare High Court Judge Justice
|
19 March |
Judge Justice Omerjee noted that
|
|
|
Jestina
|
Mukoko was remanded to 9 April
Defence lawyer Alec Muchadehama |
20 March |
Harare magistrate Memory Chigwaza
|
|
|
Anderson Shadreck Manyere
|
A ruling on an application for
|
23 March |
Manyere made a bail |
|
|
Anderson Shadreck
|
Harare Magistrate, Memory |
24 March |
The dismissal of the application
|
|